R. v. Chapman

R. v. Chapman Collection Decisions of the Court of Appeal Date 2006-01-20 Docket numbers C42875 Judges Rosenberg, Marc; Goudge, Stephen Thomas; Simmons, Janet M. Subject Criminal Decision Content DATE: 20060120 DOCKET: C42875 COURT OF APPEAL FOR ONTARIO ROSENBERG, GOUDGE and SIMMONS JJ.A. B E T W E E N: HER MAJESTY THE QUEEN (Respondent) Alan D. Gold for the appellant - and - JERRY GLEN CHAPMAN (a.k.a. GLENGARRY CHAPMAN; GLENGERRY CHAPMAN) (Appellant) David Lepofsky and Lance Beechener for the respondent Heard: November 28, 2005 On appeal from the convictions entered by Justice John R. McIsaac of the Superior Court of Justice on February 26, 2003 and the sentence imposed on April 29, 2003. SIMMONS J.A.: [1] The appellant appeals from convictions entered by McIsaac J. on four counts of assault causing bodily harm, one count of unlawful confinement, one count of sexual assault and one count of uttering death threats. At the appeal hearing, the appellant abandoned his sentence appeal but asserted that in the event he is successful in overturning any of the convictions, the global sentence imposed of 3 years’ imprisonment (5 years’ imprisonment less 2 years’ credit for time served) should be reduced. [1] [2] The charges against the appellant arose out of seven separate incidents that occurred between May 2001 and April 2002. The complainant with respect to all of the charges was the appellant’s girlfriend with whom he lived. The appellant was arrested following the last incident, which occurred on April 10, 2002. [3] The appellant did not testify at trial. Rather, his defence was an all-out attack on the complainant’s reliability and credibility, premised to a significant extent on the complainant’s memory problems arising from excessive alcohol consumption. An additional and important aspect of the appellant’s attack related to the complainant’s conduct in disclosing the allegations, including her failure to leave the appellant as a result of his abusive behaviour, her delay in complaining to the authorities, and her inconsistent explanations for her injuries. [4] The appellant raises two main issues on appeal. [5] First, he submits that the trial judge erred in assessing the complainant’s credibility. The appellant contends that the trial judge proceeded on the erroneous assumption that he was precluded, as a matter of law, from drawing any negative inference concerning the complainant’s credibility arising from her conduct in disclosing the allegations. Further, the appellant submits that the trial judge compounded his initial error by making assumptions about the “normal” dynamics of an abusive relationship, without the benefit of expert evidence. [6] In support of his submissions, the appellant relies on two specific portions of the trial judge’s reasons. Early in his reasons, the trial judge said the following: One of the major thrusts of the defence herein is the fact that the complainant continued her relationship with Mr. Chapman despite her allegations that he abused her both physically and emotionally on a continuing basis. In addition, she failed to complain about the episodes of alleged abuse to anyone in authority and she has given inconsistent explanations for certain injuries to third parties. In this regard … the Crown suggests that I am entitled to recognize these circumstances as part of the normal dynamics of an abusive relationship. I agree with this submission: see R. v. F.(D.S.) (1999), 132 C.C.C. (3d) 97 at p. 116 (Ont. C.A.). This conclusion is, in my opinion, fortified by the more recent Supreme Court of Canada ruling in R. v. D.(D.) (2000), 148 C.C.C. (3d) 41. Accordingly, I draw no adverse inference in relation to the credibility of [the complainant] based on her failure to leave Mr. Chapman after the several episodes of abuse, from her failure to complain to any person in authority until April 10, 2002, nor from her false explanations for injuries inflicted by him or for missing work [emphasis added]. [7] The appellant submits that it is clear from the trial judge’s use of the word “accordingly” immediately after he referred to R. v. F.(D.S.) and R. v. D.(D.) that the trial judge concluded that he was not entitled, as a matter of law, to draw a negative inference concerning the complainant’s credibility based on the complainant’s conduct in disclosing the allegations. Moreover, the trial judge’s reference to the “normal” dynamics of abusive relationships demonstrates that he assumed that abused persons behave in a particular way and, therefore, that there was no need for him to evaluate the complainant’s credibility in light of her conduct in disclosing. [8] Later in his reasons, when addressing the first count of assault causing bodily harm, the trial judge said: Looking at this incident in isolation, I am satisfied that the Crown has established this allegation beyond a reasonable doubt. The complainant was not drinking on this occasion. There is significant physical corroboration of the attack from the scar on the complainant's cheek. This injury is well beyond the trivial or trifling in nature given the permanent nature of this scar. Lastly, the credibility of the complainant is in no way compromised by her false explanation of the provenance of the injury to her doctor nor her failure to leave the accused or her failure to lodge an immediate complaint to the authorities. She testified that she really loved Mr. Chapman and fully expected his conduct to change. This is consistent with what we know about the dynamics of abusive relationships [emphasis added]. [9] In relation to this passage, the appellant contends that, rather than evaluating the complainant’s explanation, the trial judge simply accepted that her conduct was consistent with her having been abused. [10] I reject the appellant’s submissions. Reading the trial judge’s reasons fairly and as a whole, I am satisfied that it was only after he had considered and accepted the complainant’s explanation that the trial judge found that the complainant’s conduct in disclosing the allegations did not diminish her credibility. [11] In particular, I note that the trial judge referred specifically to the complainant’s testimony that she loved Mr. Chapman and expected his conduct to change. Had the trial judge concluded that he was prohibited, as a matter of law, from drawing an inference adverse to the complainant’s credibility based on her conduct, it would have been unnecessary for him to refer to this evidence. Moreover, because the trial judge focused on the complainant’s explanation for her conduct in making disclosure, I am satisfied that he did not simply assume that her conduct was the result of her being abused. Rather, it was only after he had considered and accepted her explanation that the trial judge decided that the complainant’s conduct in disclosing the allegations did not diminish her credibility. [12] As for the trial judge’s references to the dynamics of abusive relationships, the trial judge was entitled to recognize that “persons who are abused in intimate relationships may respond differently because of that relationship than they would in other circumstances” without resorting to expert evidence: see R. v. F.(D.S.) (1999), 132 C.C.C. (3d) 97 (Ont. C.A.) at para. 64. [13] I agree that it would have been preferable had the trial judge not referred to the “normal” dynamics of abusive relationships. However, considering his reasons as a whole, I read the trial judge as saying that, in the context of an allegedly abusive relationship, conduct that ordinarily would undermine credibility (such as giving a doctor a false explanation for the cause of an injury) should not necessarily be viewed as abnormal, or different from what might reasonably be expected. [14] For the reasons I have already explained, I conclude that the trial judge evaluated the complainant’s credibility based on her explanation of her conduct and not based on an assumption that her conduct indicated that she had been abused. [15] Accordingly, I would not give effect to the first ground of appeal. [16] The second ground of appeal relates to the trial judge’s use of the evidence relating to some incidents as similar fact evidence to support his findings in relation to other incidents. The trial judge used similar fact evidence to support his findings in relation to the first and third counts of assault causing bodily harm (counts 1 and 5 on the indictment). For reasons that I will explain, I conclude that it is necessary that I consider this ground of appeal only in relation to the third count of assault causing bodily harm (count 5 on the indictment). [17] The Crown relied on four separate incidents as the basis for the first count of assault causing bodily harm (count 1 on the indictment), and the trial judge used similar fact evidence to support his findings in relation to three of those four incidents. Because the trial judge’s finding concerning the one remaining incident relied on by the Crown in relation to count 1 is capable of supporting a conviction for assault causing bodily harm, I am satisfied that this ground of appeal is not capable of affecting count 1. [18] The third count of assault causing bodily harm (count 5 on the indictment) relates to an incident that occurred in January 2002. The trial judge found that the appellant attacked the complainant, pulled her around the kitchen by her hair, threatened to kill her and her family and punched her in the nose with his fist. In response to this conduct, the complainant climbed out a window without socks, shoes or a coat, ran to the home of a neighbour and then took a taxi to the home of friends. The trial judge said: She ran to a neighbour’s house, wiped the blood from her nose with a cloth and then took a cab to the home of some friends. The evidence of this neighbour is before the court and, in my opinion, confirms the bloody nose and absence of shoes and socks as well as a coat to a “T”. In addition, her friends confirmed her arrival at their house and paying for the cab fare….Because this episode fits the template, I am prepared to apply similar fact principles in relation to the episodes in the first count in resolving this allegation. Despite the fact that [the complainant] was drinking alcohol on this occasion, I am satisfied beyond a reasonable doubt that this allegation has been made out. [19] Earlier in his reasons, relying on the decisions in R. v. MacDonald (1974), 20 C.C.C. (2d) 144 (Ont. C.A.) and R. v. Arp (1998), 129 C.C.C. (3d) 321 (S.C.C.), the trial judge accepted the Crown’s submission that he was entitled to rely on the similar facts of an episode “to support the allegation of another episode”. Further, when dealing with the first count of assault causing bodily harm, the trial judge said that the incidents relied on by the Crown had significant similarities and amounted “in effect, [to] a ‘template’ ”. [20] In relation to this ground of appeal, the appellant contends that the trial judge failed to engage in the necessary analysis to support the use of similar fact evidence. Further, the appellant submits that when one analyzes the evidence relating to the various incidents, the only real similarity is the allegation that the appellant engaged in successive acts of domestic violence, a degree of similarity that fails to approach the necessary threshold for admissibility. [21] Finally, since the trial judge indicated specifically that it was unnecessary that he resort to similar fact evidence to make findings of guilt in relation to some of the counts, the appellant contends that the similar fact evidence must have been a necessary component of his findings in those instances when he relied on it. [22] I agree that the trial judge’s reasons for using similar fact evidence are sparse and that they do not follow the analytic framework set out by the Supreme Court of Canada in R. v. Handy (2002), 164 C.C.C. (3d) 481. For example, the trial judge’s reasons do not: outline the similarities and dissimilarities between the incidents; identify the degree of connection necessary to make the evidence relating to one count admissible on another; or balance probative value versus prejudicial effect. [23] Moreover, to the extent that the trial judge’s reference to the January 2002 incident fitting “a template” indicates that he was satisfied that there was sufficient similarity between the incidents involved in count 1 and the January 2002 incident to support a general inference that the complainant was assaulted during the January 2002 incident, in my view, he erred. [24] Use of similar fact evidence in relation to the issue of whether an offence occurred generally requires “a persuasive degree of connection between the similar fact evidence and the offence charged”: see R. v. Shearing (2002), 165 C.C.C. (3d) 225 (S.C.C.) at para. 48. On my review of the record, the similarities between the count 1 incidents and the January 2002 incident are of a very general character (e.g. repeated acts of unprovoked physical violence committed while drinking) and do not meet the threshold necessary to justify their admissibility in relation to the issue of whether an offence occurred: see also R. v. Blake (2003), 181 C.C.C. (3d) 169 (Ont. C.A.), aff’d (2004), 188 C.C.C. (3d) 428 (S.C.C.). [25] However, despite the foregoing conclusion, I am satisfied that the evidence from the other counts was admissible on count 5 on the indictment to assist the trial judge in understanding the nature of the relationship between the parties and to demonstrate that the appellant had an animus against the complainant. [26] The live issue for trial in relation to count 5 was whether the complainant was injured as the result of being assaulted by the appellant. Although the trial judge was careful to note that the complainant had been drinking at the time of the January 2002 incident, he also noted that the neighbour’s testimony confirmed the complainant’s bloody nose and the fact that she had left her home during winter without a coat, socks or shoes. [27] Evidence of animus (or motive) is capable of contributing to the proof that an act occurred, as, of course, is the intent with which an act is done: R. v. F.(D.S.), supra, at paras. 22-25. See also R. v. Handy, supra, at paras. 76-80, indicating that evidence of prior acts of violence may be admissible on the issue of animus, even where the prior act is quite dissimilar to the act in question. This is because the factors driving the cogency of the inferences sought to be drawn from the similar fact evidence are different from the factors driving cogency in relation to other issues. Moreover, I am satisfied that the probative value of the evidence from other counts on the issue of animus outweighed its potential prejudicial effect. [28] Accordingly, while I conclude that similar fact evidence was not admissible on count 5 for the purpose for which the trial judge appears to have used it, I am satisfied that the evidence was admissible to demonstrate animus, and that there is no reasonable possibility that the verdict on count 5 would have been different had the trial judge used the evidence for that purpose. [29] As already indicated, the trial judge noted that there was supporting evidence that confirmed that the complainant was injured as a result of the January 2002 incident, and that she fled her home during the winter without a coat, shoes or socks. Particularly with the added support of evidence from other counts to demonstrate animus, I conclude that a conviction was inevitable. Accordingly, I would not give effect to the second ground of appeal. [30] Based on the foregoing reasons, I would dismiss the conviction appeal. In addition, I would dismiss the sentence appeal as abandoned. Released: January 20, 2006 “MR” “Janet Simmons J.A.” “I agree M. Rosenberg J.A.” “I agree S.T. Goudge J.A.” [1] This appeal was heard together with the appellant’s appeal from a costs order made by the trial judge against the appellant on an unsuccessful third party records application. By separate reasons released concurrently with these reasons, we allowed the appellant’s appeal against the costs order.